Relax, Hobby Lobby won’t take away anyone’s birth control

It was a victory for religious liberty, a defeat for the administration, and a draw for women’s rights.

Kevin Baine, an attorney in private practice in Washington, DC, is a former law clerk to Justice Thurgood Marshall. He has litigated cases of religious freedom for over 30 years and filed an amicus brief in the Hobby Lobby case. His clients include the Post.

Virtually all of the criticism of the Supreme Court’s Hobby Lobby decision has assumed that women who work for Hobby Lobby and other religious businesses will lose their free contraceptives. That’s false. As Justice Samuel A. Alito Jr. explained in his opinion for the court, the effect of its ruling on these women’s access to contraception is “precisely zero.”

The reason is this: the regulations under the Affordable Care Act already provide that if a religiously affiliated employer has a genuine religious objection to including those services in its insurance plan, the insurer must provide them separately at no cost to the employee. The government had limited that work-around to nonprofit organizations — such as universities and hospitals. The Supreme Court simply held that religiously oriented for-profits should get the same accommodation. In other words, when there is an alternate way of providing services to employees without forcing religiously motivated businesses to compromise their principles, the government must choose the path that is “least restrictive” of religious freedom.

The result is that the women employed by Hobby Lobby will receive reproductive care from their insurer, same as if the government had won — at no cost to them — as long as the Obama administration tweaks the existing regulation to conform to the court’s ruling. Yes, this requires action by the administration, but having argued so strongly that women must receive cost-free access to these services, why wouldn’t the administration agree? It doesn’t need congressional approval, and the court already approves.

Critics who say that the Hobby Lobby opinion undermines women’s right to reproductive health care do not seem to have read the opinion. The court could not have been more clear in reaffirming that “women (and men) have a constitutional right to obtain contraceptives.” And the court took it for granted that the government’s interest in guaranteeing cost-free access to contraception is a “compelling” one. The issue in the case was not whether women employees will receive free contraceptive services under the Affordable Care Act, but rather who will pay for them. Some perspective is required to answer that question.

The right to free exercise of religion protects not only the right to believe what one chooses, but to exercise one’s religion in all phases of one’s life, including one’s professional life. That right is protected explicitly by the first clause of the First Amendment to the Constitution. The right to reproductive freedom is also protected by the Constitution. But there is no constitutional right to have the government, much less a private employer, subsidize one’s reproductive choices. Here the court simply said that the government should not make a religiously motivated employer pay for services that it views as the moral equivalent of abortion — specifically, the morning-after pill and two types of intrauterine devices — if there is another way to fund those services without imposing the cost on the women employees themselves.

Of course, the significant legal issue in this case was whether for-profit businesses have rights of religious freedom at all. More precisely, as the court saw it, the question was whether individuals forfeit their right to run their businesses according to their religious principles when they choose to organize as a corporation. The court held that merchants should not have to decide between giving up their right to religious liberty and forgoing the benefits of incorporation (principally, the limitation on personal liability) that their competitors enjoy. Constitutional scholars can debate that point. But the debate is not a simple liberal-conservative one. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented on the point, but Justices Stephen G. Breyer and Elena Kagan did not join that portion of the dissent. They wrote separately to say that they need not decide this issue, suggesting that the question was a close one.

The government, however, saw the question as clear-cut. For the second time in two years, the administration staked out a strong position in opposition to a claim of religious liberty, only to be slapped down by the Supreme Court. In the 2012 Hosanna-Tabor case, the government argued that a religious school’s supposedly unjust dismissal of a teacher who led students in daily prayer and taught religion classes did not implicate the free exercise of religion at all — a position that Kagan called “amazing” at oral argument and the court later rejected 9 to 0.

In this case, the government argued that the right to free exercise of religion was not implicated at all in a merchant’s religiously motivated conduct. This time it lost that argument 5 to 2. So if one is looking for winners and losers in this case, one should count the decision as a significant victory for religious liberty, a substantial defeat for the government, and no less than a draw for women’s rights.

Kevin Baine, an attorney in private practice in Washington, DC, is a former law clerk to Justice Thurgood Marshall. He has litigated cases of religious freedom for over 30 years and filed an amicus brief in the Hobby Lobby case. His clients include the Post.